BVA9507422
DOCKET NO. 93-09 634 ) DATE
)
)
On appeal from the decision of the
Department of Veterans Affairs Regional Office in Indianapolis,
Indiana
THE ISSUE
Entitlement to a temporary total disability rating due to
convalescence based on immobilization of the right ankle joint
from April 1990.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
T. Reichelderfer, Associate Counsel
INTRODUCTION
The veteran served on active duty from April 1982 to August 1983.
This case arises from a rating decision in October 1990 from the
Indianapolis, Indiana, Regional Office (RO). That determination
denied entitlement to a temporary total convalescence rating,
pursuant to 38 C.F.R. § 4.30 (1994), based on immobilization of
the right ankle joint.
In a statement dated in December 1990, the veteran's
representative advised the VA of the veteran's desire to
withdraw, from appellate consideration, the issue of entitlement
to an increased rating for the right ankle disability.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that the RO erred when it denied entitlement
to a temporary total disability rating due to convalescence based
on immobilization of his service-connected right ankle. He
specifically alleges that his right ankle was immobilized in a
cast and that he was required to use crutches following his ankle
injury.
DECISION OF THE BOARD
The Board of Veterans' Appeals (Board), in accordance with the
provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and
considered all of the evidence and material of record in the
veteran's claims file. Based on its review of the relevant
evidence in this matter, and for the following reasons and bases,
it is the decision of the Board that a temporary total disability
rating due to convalescence is warranted for the right ankle
disability from April 22, 1990, to May 25, 1990.
FINDINGS OF FACT
1. All evidence necessary for an equitable disposition of the
veteran's claim has been developed.
2. Immobilization of a service-connected major joint, the right
ankle, including with a cast, for the period of April 22, 1990,
to May 25, 1990, is shown.
CONCLUSION OF LAW
A temporary total disability rating due to convalescence is
warranted. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.30
(1994).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Initially, the Board finds that the veteran's claim is "well
grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West
1991); that is, a plausible claim has been presented. The
veteran has not indicated that relevant evidence of probative
value may be obtained which has not already been associated with
his claims folder. Accordingly, the Board finds that the duty to
assist him, as mandated by 38 U.S.C.A. § 5107(a) (West 1991), has
been satisfied.
Service connection for a disability classified as "residuals of
fracture to right ankle" was granted with a 10 percent rating
assigned in a rating decision, dated in January 1984, following a
review of the veteran's service medical records and the report of
a Department of Veterans Affairs (VA) examination. In a rating
decision, dated in October 1990, a 20 percent rating was
assigned.
The veteran contends that he is entitled to a temporary total
disability rating since he was instructed to wear an air cast
following an injury to his right ankle. After a review of the
evidence of record, the Board finds that he is entitled to a
temporary total disability rating due to convalescence.
A report of a private hospital emergency room consultation, dated
April 22, 1990, indicates that the veteran was seen for a
sprained right ankle. The emergency room record and follow-up
care instructions indicate that the veteran was advised to use a
splint and crutches. A VA medical certificate, dated April 23,
1990, indicates an assessment of ankle sprain with instructions
to elevate and stay off his foot as much as possible. Discharge
instructions from a private hospital in Indianapolis, dated May
4, 1990, instructed the veteran to keep his right foot elevated
as much as possible and to leave the air cast on. A VA medical
certificate, dated May 5, 1990, notes an assessment of sprain
with a plan to continue use of an air cast. The certificate
notes that he had received the air cast from a private hospital
in Indianapolis on April 27, 1990. Another VA medical
certificate, dated May 15, 1990, indicates planned treatment
including an air cast with instructions to keep an orthopedic
appointment. A progress note from the VA orthopedic clinic,
dated May 25, 1990, indicates an impression of lateral
instability with degenerative joint disease with a plan of
rehabilitation for acute sprain. A consultation sheet, dated May
25, 1990, from physical therapy, shows that the veteran was
issued a cane and that no further treatment was indicated. An
orthopedic progress note, dated July 6, 1990, indicates an
assessment/plan of bone scan of right ankle, CT scan of the right
ankle, and return to cast clinic for ankle fusion versus scope
debridement and lateral stapling. The report of a VA
examination, dated in September 1990, notes the veteran reported
a medical history of right ankle instability and pain despite use
of an air cast since April 1990.
Pursuant to the provisions of 38 C.F.R. § 4.30 (1994), a total
disability rating may be assigned without regard to other
provisions of VA's Schedule for Rating Disabilities, 38 C.F.R.
Part 4 (1994), for a period of one to three months, when it is
established by hospital discharge or outpatient release that
entitlement is warranted. 38 C.F.R. § 4.30(a)(3) (1994) provides
that entitlement is considered warranted if treatment of a
service-connected disability resulted in immobilization by cast,
without surgery, of one or more major joints.
Here, the evidence shows that the veteran injured his service-
connected right ankle on April 22, 1990, which was clinically
assessed as a sprain. The medical evidence of record indicates
that his ankle was placed in a splint. Later medical records
indicate that the veteran was issued an air cast and instructed
at various times to keep off his right ankle, to elevate it, and
to continue the use of the air cast. The records indicate
instructions for continued use of the air cast until May 25,
1990, when the veteran was referred for rehabilitation with no
mention being made of continuing the use of the air cast.
Additionally, the May 25, 1990, progress note from physical
therapy did not indicate that the veteran was to continue to use
the air cast, and reported that no further treatment was needed.
The Board finds that a major joint, the veteran's right ankle,
was immobilized by a splint or an air cast, from April 22, 1990.
The evidence shows that the veteran was instructed to keep the
joint immobilized in the air cast until May 25, 1990, when there
were no further instructions given concerning the use of the
cast. Therefore, the veteran is entitled to a temporary total
disability rating due to convalescence because of immobilization
by cast of his right ankle for the period from April 22, 1990, to
May 25, 1990. The Board notes the report of the VA examination,
dated in September 1990, that indicates the veteran reported he
had used the air cast since April 1990. However, the medical
evidence of record does not indicate that the use of the air cast
was required after May 25, 1990. Therefore, entitlement to a
temporary total rating after May 25, 1990, is not warranted. 38
U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.30 (1994).
ORDER
A temporary total disability rating due to convalescence for the
period of April 22, 1990, to May 25, 1990, is granted subject to
the laws and regulations governing the disbursement of monetary
benefits.
U. R. POWELL
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to be
assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting less
than the complete benefit, or benefits, sought on appeal is
appealable to the United States Court of Veterans Appeals within
120 days from the date of mailing of notice of the decision,
provided that a Notice of Disagreement concerning an issue which
was before the Board was filed with the agency of original
jurisdiction on or after November 18, 1988. Veterans' Judicial
Review Act, Pub. L. No. 100-687, § 402 (1988). The date which
appears on the face of this decision constitutes the date of
mailing and the copy of this decision which you have received is
your notice of the action taken on your appeal by the Board of
Veterans' Appeals.